SOUTH AFRICAN IMMIGRATION LAW

INTERVIEW WITH JONATHAN KLAAREN ON THE LAW
REPORT

A very good evening to you again from The Law Report. Now, the
law relating to aliens - or immigrants, or non-citizens, or what
you will - and the implementation of that law has come under a
fair amount of scrutiny in recent months. Foreigners who are
married to South Africans, for example, have had a far from easy
time in getting entry and residence permits. One case, at least,
has gone all the way to the Constitutional Court.

There's been talk about amending the legislation that deals with
aliens. Way back in March of last year, 1999, the government
produced a White Paper on a reform of the Aliens Control
legislation, and I understand that lately a Draft Bill has been
to Cabinet.

Well, with me in the Law Report studio this week to shed some
light on what seems to be a fairly confused situation, if not a
contested one, is Jonathan Klaaren. He's an associate professor
in the Wits University School of Law. He teaches Constitutional
and Administrative Law there. He's also on the executive
committee of the National Consortium on Refugee Affairs.

Jonathan, every country in the world has law or policy or
whatever which deals with foreigners and aliens, and South Africa
can't be unique in that. Is the law here markedly out of line
with international laws?

JONATHAN:

I think, actually, most people would say that the Aliens Control
Act - and I think even by its very title and the language that
it's using one can see, yes - most persons would say that it is
out of line with international standards. Of course, every nation
does have to regulate the flow of persons across its borders, but
the legal provisions in the Aliens Control Act are recognised as
being out of date.

JOHN:

In what way?

JONATHAN:

Well, one way in which they're out of date is simply where they
come from. They come from the apartheid era. This is probably the
most major piece of legislation that's directly rooted in the
racist apartheid regime. So, just simply in the fact that
symbolically and historically where they come from, the laws are
out of date.

In addition, they're out of date for where South Africa needs to
be in terms of its national economy at the moment. That is, as
part of a globalising world. South Africa needs to - and I think
government policy recognises this - be part of the globalising
world in terms of interacting with it, attempting to trade,
attempting to - through investments and business - be part of
that global economy. But also to internally regulate an attempt
to soften the effects of that globalisation and attempt, through
development, to actually address some of the disparities within
the country. And on both scores the Aliens Control Act does not
measure up.

JOHN:

Some of the public unhappiness, perhaps in individual cases but
certainly widespread and fairly vocally expressed, has been with
the way individuals feel they have been treated, or not very well
treated, by the Department of Home Affairs.

JONATHAN:

Yes, stories abound. Certainly... Well, one thing it's fair to
say is that the Department of Home Affairs does not receive the
resources that certain other Immigration Departments do in other
countries. However, that said, it is probably fair to say, I
think, that it's the department that attracts the most number of
complaints, often related to efficiency - but also related to
procedural fairness. Individuals do not feel as if their cases
are being treated fairly. And there really are very few
safeguards to be able to show them that, even if their cases are
being dealt with fairly, that that is the case.

JOHN:

Well, if we just talk about that in the context of the issue of
foreign spouses, and whether they may be allowed to live here or
not, one of the points of complaint - and I think this was what
was behind at least one of the cases that went to the High Court
- was that there was a fee being levied or raised by the
Department of Home Affairs. It was quite substantial; it was in
the order of eight to ten thousand rands.

JONATHAN:

Ja, that's where the point about equity actually within the
country comes in. That fee, which was - I think you're correct -
at the time that the case was litigated, the fee was around R10
000. One of the issues on which the lawyers who were putting that
case forward argued was that it created a disparate impact
between poor South Africans and rich South Africans, that
essentially one only had a right to live with one's spouse if one
was rich. And that obviously is the sort of thing that a Bill of
Rights culture in the New South Africa does not want to put up
with.

JOHN:

Why should there be a fee levied at all, you might ask.

JONATHAN:

Yes, one could actually ask that. I think it's international best
practice to, in fact, engage in some fee for service. I don't
think that the principle of looking into fee for service was
being questioned but really the amount, in this case.

JOHN:

Is the application of the Act being criticised on the basis that
it's unreasonable to look at a marriage and determine whether
that is, in fact, a marriage of convenience, simply a way of
providing an entry ticket into the country? Is that point an
issue?

JONATHAN:

Not really. Everyone agrees that marriage ought to be something
that is an institution... There is an interesting issue about
same-sex couples, and perhaps we can talk about that as well. But
most persons agree that there is an issue of maintaining marriage
as a genuine institution.

There is some concern - for instance, the new Draft Immigration
Bill - that it allows for the cancellation of a permanent
residence permit where a marriage has broken up. For instance,
within three years of gaining the permanent residence permit.
What that might do is to create a pressure, an incentive, for
persons to stay in a marriage - or indeed to allow for one
spouse, who may be in an abusive relationship, to have to stay in
a marriage. And that's a concern.

JOHN:

And the same-sex couples issue?

JONATHAN:

Ja, the same-sex couples issue is a relatively straightforward
equality issue that also went up to the Constitutional Court. The
Court essentially said that, if the immigration law was going to
offer a benefit to foreign spouses, it needed also to offer a
benefit to persons in same-sex life partnerships. And subsequent
to that case, which was decided against the Minister of Home
Affairs, the Minister has put through regulations that basically
say that, if persons are in a same-sex relationship, they have
until the 25th of October to apply for these kinds of immigration
benefits. And after that time - and indeed for any persons in
same-sex relationships who are entering the country - they will
be able to apply for benefits on the same basis as heterosexual
couples.

JOHN:

And benefits here means...? The granting of a permit?

JONATHAN:

Benefits here means greater access to permanent residence. It
does not mean automatic access to permanent residence but greater
access, ja. The ability, for instance, to apply within the
country as well as outside.

JOHN:

The whole question of permits applies to all sorts of people. I
mean, it applies to foreign students, it applies to work seekers,
it applies to all sorts of people, doesn't it?

JONATHAN:

Sure. The two general categories are permanent residence permits
and temporary residence permits. Although permanent residence
permits are now called Immigration Permits.

JOHN:

And the current state of play on the foreign spouses issue is...
what?

JONATHAN:

The current state of play on the foreign spouses issues is that a
foreign spouse is able to apply for a permanent residence permit
from within the country. The reasoning for that was that
Parliament had essentially put forward no criteria, no standards,
to govern the exercise of discretion by the immigration officer
to refuse to issue that permit. So the Constitutional Court said
until there were such standards that they would allow for permits
to be applied for, except in terms of good cause. And good cause
might mean that there is a delay in the application.

JOHN:

Are foreign spouses allowed to apply for work permits?

JONATHAN:

My understanding, based on the Dawood case, is that they are
allowed to apply for work permits.

JOHN:

You refer to the Dawood case. I believe this is an important
case, not only from the point of view of the Dawood family, but
also for lawyers generally? And it goes wider than the
immigration law itself.

JONATHAN:

Yes, absolutely. What happened there - partly as I was mentioning
before - is that there is a fundamental right, a fundamental
right of spouses to live together, part of the right to dignity
in the Bill of Rights that was being infringed. Since it was
being infringed without specific criteria laid down by
Parliament, the Court was pointing out that, to allow that right
to be infringed at the discretion of an official - a junior
official - would be unconstitutional.

Now that principle, the idea that administrative discretion -
executive discretion - cannot infringe upon fundamental rights
without clear statutory criteria, that's definitely of
applicability beyond the immigration law field. It's something
that other government departments will need to be careful about
and to look at their laws for as well. What it essentially means
is that Parliament must do its job better in terms of actually
specifying standards of criteria to drive policy.

JOHN:

But if the Act itself - whatever Act it might be - does not
specify the discretionary power granted to the official, isn't it
assumed that the official will have a discretion? And because
he/she has a discretion, must actually apply sensible criteria to
it, even if they aren't spelt out?

JONATHAN:

That would be the case if there weren't a fundamental right that
was being infringed upon. Once there is a fundamental right that
is being infringed upon then it cannot be limited; one cannot use
the limitations clause to justify the action of limitation.

JOHN:

This is SAfm 104-107, radio for the well-informed. This is The
Law Report programme and tonight we're talking about immigration
law. My guest is Jonathan Klaaren. He's an Associate Professor in
the School of Law at Wits University.

If you'd like a copy of this programme on cassette, you can
contact RadioPro at telephone number Johannesburg 714-4709. And
RadioPro's address is Private Bag X1, Auckland Park, 2006. In a
day or two it'll be possible to look at a text transcript of
what's been said on tonight's edition of the programme. You can
read it by visiting SAfm's homepage on the Internet at:
www.safm.co.za.

Now, moving away from the foreign spouses question, what are the
other issues to do with immigration law that are really being
debated at the moment?

JONATHAN:

In the White Paper and Immigration Bill process I think there are
a couple of major issues that are being debated. One is
essentially the attitude that South Africa ought to take towards
immigration. Most surveys will show that the public is, at a
fairly high level, opposed to further immigration. The issue is
whether there ought to be, instead of a pure control orientation,
whether there ought to actually be facilitation of at least some
immigration, in some matters, in order to facilitate growth and
development.

So I think really that fundamental issue, that sort of
orientation towards immigration, is really up for grabs. In
addition, there's a number of new institutions that are being
proposed. We've spoken about how the Department of Home Affairs
is one of the real leftovers, and one thing that is being talked
about in the White Paper in the new Bills is the possibility of
new institutions, for instance immigration courts, an immigration
service, even an additional professional security service -
perhaps something like a border control.

And I think a number of these proposals at least work in an
appropriate direction towards modernising the management and
administration of immigration, although there really are a number
of questions that remain to be worked out.

JOHN:

One's impression is that certain other countries have quite an
up-front sort of policy about 'We want to attract people who know
about computers' - or engineers, or accountants, or whatever it
might be. One doesn't - I suppose possibly because one is within
the country rather than outside it - have that sort of
perspective on what South Africa's policy is about attracting
skills.

JONATHAN:

No. South Africa has really been lagging in this globally
competitive market here and I think that's going to be a problem
- at least from my point of view. For instance, there's talk
about how one attempts to retain skills within the country,
possibly even by forbidding people to leave and that sort of
thing. There may be incentives that one can offer in order to
keep skilled people in the country but I think, really, the
strategy that's going to work is to instead be competitive and to
actually, in fact, take skilled people from elsewhere, or at
least to participate in the movement of skilled people around the
world.

Well, [LAUGHING] there are a lot of different Drafts. That's one
reason for the plural. But I think the story here is just that
there is, from the Parliamentary Portfolio Committee, a process
of looking at the White Paper, which is stated to be the
government's official policy on immigration at the moment. And
there is, from the Parliamentary Portfolio Committee's point of
view, a process of hearings that's happened around the country
over the past month or two, and they are looking into the issue
of whether or not they approve that White Paper.

The Minister of Home Affairs, on the other hand, over the past
couple of months has been driving a process that's actually moved
beyond that and actually gone to the point of an Immigration
Bill, and has submitted that to Cabinet. Whether there will, in
fact, be plural Bills is, I think, not really clear.

JOHN:

And is your sense that there's some divergence between these two
initiatives?

JONATHAN:

Yes, I think definitely. The amount of specific policy divergence
is not absolutely clear, although I think one can say that the
Minister's Immigration Bill is more business-friendly than
labour-friendly, and one would assume that the ANC-driven
Parliamentary Portfolio Committee would be at least more willing
to listen to Labour's point of view on an important issue such as
this.

JOHN:

Well, you referred to surveys a little while ago, and we have
seen, haven't we, quite alarming outbreaks of xenophobic
behaviour directed towards immigrants, whether they be lawful or
unlawful immigrants.

JONATHAN:

Yes. I think we are quite concerned about those kinds of
xenophobic attitudes. Xenophobia is and has been part of the
Human Rights Commission's concern, along with racism. And, just
in terms of specific incidents, there's a recent case in Pretoria
where one of our member organisations was thrown off a train by
persons in what was a xenophobic attack.

JOHN:

You're talking about the National Consortium on Refugee Affairs?

JONATHAN:

Yes. This is Lawyers for Human Rights, yes. This is in the more
narrow field of political refugees, of refugees who are fleeing
persecution in their home countries - for instance from Congo or
from Somalia or something along those lines. The two types of
organisation are organisations who provide services to these
refugees, and also those who participate in policy which has
resulted in, for instance, South Africa passing its Refugees Bill
in 1998, and actually beginning to implement that Bill in April
of this year.

I think it's worth pointing out that, in the field of refugees,
whilst there are certain issues there, generally it's accepted
that South Africa's legislation is quite progressive, and is
relatively in line with international best practice. That's not
the case in immigration more generally.

JOHN:

And, I take it, it would be true to say that the number of
refugees - political refugees - who were favourably processed by
the legislation would be relatively small compared with the
number of immigrants or aliens?

JONATHAN:

Ja. The question of numbers is quite interesting in itself but
certainly you're right on that point. The number of refugees -
we're talking about 20 000 or so over 5 years which, you know, at
the end of the day is really quite a small number, especially
when you consider that Africa as a continent has the highest
number of refugees in the world. And when one compares that to
any estimate of undocumented migrants, the political refugees are
obviously quite a small population.

I suppose probably the smallest estimate I've seen of
undocumented migrants is about 500 000 persons. The largest
estimates range into 5 million or 8 million but I actually really
even hesitate to say those numbers because the methodology on
which those surveys and statistics are based are just so clearly
flawed.

For instance, just the notion that one could go from 5 million to
8 million when one looks at the surveys, the numbers switched
along those lines of 3 million within, say, 6 months. And I think
that shows that the statistics they were based on were ultimately
very flawed.

JOHN:

Or else it's a matter of 'scare' headlines.

JONATHAN:

Well, I think... I hate to say this on a programme like this but
I think the media does share some of the blame. But ultimately,
when one goes back to where these statistics come from, it's the
methodology of the statistics that is at fault.

Essentially, what happened was that persons were asked how many
illegal immigrants they thought were in their neighbourhood, and
that's a notoriously inaccurate kind of way of determining
numbers. And, as I say, the fact that the estimates fluctuated,
you're seeing increases of 900% over 6 months, and then decreases
again of 900% over the next 6 months, shows that those numbers
aren't very good.

JOHN:

Yes, it sounds like a way of settling scores, too... I mean, you
know, illegal immigrants, have you seen...? You know, that kind
of thing.

JONATHAN:

Don't get personal. [LAUGHINGLY]

JOHN:

[WITH A LAUGH] No, all right. For the sake of illustration only.
Now, you mentioned the question of measures being perhaps
business-friendly or labour-friendly, depending on where the
measures were coming from. Is there much imported labour into the
country at the moment? A lot of labour came to the mines,
historically, from outside the country's borders. Is that still
the case?

JONATHAN:

Well, there are other persons who are more expert on this, but
certainly it's true that there used to be quite a number. Then
for a while the percentage of foreign workers on the mines was
really decreasing. However, the interesting thing, as I
understand it, is that over about the last 4 to 5 years that's
actually been increasing again. And, in fact, I believe the
figure is somewhere around 60% at the moment.

JOHN:

Yes, I was just wondering whether, in framing whatever reform of
the immigration laws will emerge from all this, considerations
like obligations to the Southern African Development Community
and fellow member states will play apart in it all.

JONATHAN:

I think it should play a part in it all; it's not clear exactly
how it is playing a part. One of the concerns with the
Immigration Bill that the Minister has been working on is that
would apparently allow for the perpetuation of essentially the
migrant labour system with respect to regional member states.
Those relationships are built around bilateral treaties that
allow, for instance, for compulsory deferred pay and special
treatment for farms and for the mining sector. And that appears
to be something that is not being challenged or being changed.

In some ways, it's fair to say that the competing models for
immigration management and administration have actually been
wider than SADC. The American model is the one that, in some
senses, is actually driving this process at the moment. Although
earlier on - and I should say that this policy debate has been
going on for much more than just one or two years - earlier on,
say about 3 or 4 years ago, the Canadian model of immigration
management was more dominant.

The Canadian model, for instance, is very friendly to skilled
migrants. It has a points system. It allows persons to basically
be able to tell whether or not they'd be allowed into Canada by
judging themselves on a points scale. The American model is not
quite so up-front in that way; it's built more on a border
control strategy and, indeed, as that model's been adapted in
South Africa, it comes out more to a sort of community policing
and services control model.

JOHN:

Community policing?

JONATHAN:

Ja. This is what I actually think is probably the most disturbing
theme in the Immigration Bill and actually the White Paper as
well. The essential idea of the White Paper is that, in moving
away from defending the border, so not only defending the actual
borders of the country but to have instead internal enforcement,
and that that would be a task that the general police would
continue to fulfil, and it's one that they would actually involve
the community within. So it's actually inviting police persons
to, for instance, hold community forums in order to try to detect
and to prevent the movement of undocumented persons.

I think it's not a very great leap from community policing to
xenophobic attacks and vigilantism. And I think the concern,
certainly of my organisation but also the South African Human
Rights Commission, has been that this kind of policy will
increase levels of xenophobia and lead to violence against, I
should say, not only non-citizens but also citizens. Because
there's a real overlap, often, between citizens - particularly
those of a particular colour - and non-citizens.

JOHN:

People are not judged on whatever papers they're carrying or not
carrying, often, but judged on their physical appearance?

JONATHAN:

Right. And, just to talk about those papers for a moment, part of
what the White Paper and Immigration Bill talks about is the
necessity to essentially carry those papers around all the time.
And indeed the Immigration Service, the new organ that would be
essentially replacing the Department of Home Affairs, or carved
out of the Department of Home Affairs in relation to this
function, would be able to determine, to say to other government
departments, 'Require these papers before this service is given
or not.'

Now, what that's going to do is, by actually requiring these
kinds of documents, it's not exactly a client-friendly, customer
driven kind of approach, and I think one of the concerns is that
citizens will actually suffer as well as non-citizens, in the
kinds of inefficiencies and blockages that are likely to result
from this kind of close policing of public services.

JOHN:

Lastly, have you any sense on the time frame before new
legislation does actually get enacted?

JONATHAN:

It's a question that I think is really up in the air. There
certainly is talk that it'll happen before the end of the year.
My bet is 2001.

JOHN:

Jonathan Klaaren is an Associate Professor in the School of Law
at the University of the Witwatersrand in Johannesburg, where he
teaches Constitutional and Administrative Law. He's also on the
Executive Committee of the National Consortium on Refugee
Affairs. My thanks to him for his time and his expertise in
taking us through tonight's subject.

TRANSCRIBER'S NOTE:

Apologies for any names that might have been misspelled but
working from an audio cassette one does not have reference to the
printed word and it is possible that errors might therefore
occur.